This is an action brought by a wife against her husband (now an incompetent) and his committee to recover payments due under a separation agreement made in 1916. The agreement reads in part as follows: "If party of the second part [wife] shall commit any act which shall entitle party of the first part [husband] to a divorce under the Laws of the State of New York, then upon such divorce being obtained the provisions herein shall be null and void."
The defendant husband was adjudged incompetent in 1923. As a "Fourth Affirmative defense, and as and by way of a counterclaim," defendants have alleged that since the execution of the separation agreement the plaintiff has lived and still is living in open, continuous and notorious adultery with one who is the father of several children born to her. Other facts essential in an action for divorce are alleged. On plaintiff's motion Special Term struck out these allegations as insufficient in law to constitute either a defense or a counterclaim. The Appellate Division, Second Department, has modified the order of Special Term by permitting these allegations to stand as a counterclaim but not as a defense.
The case is here by leave of the Appellate Division, which upon the appeal of the defendants certified the question: "In so far as the Fourth Affirmative Defense contained in defendants' answer is concerned, was the order properly made?" Upon the plaintiff's appeal the question certified is: "In so far as the counterclaim is concerned, was the order properly made?"
Civil Practice Act section 1377 provides in part as follows:
"A committee of the property may maintain in his own name, adding his official title, any action or special proceeding which the person with respect to whom he is appointed might have maintained if the appointment had not been made."
In spite of this statutory language, the court has concluded that an action for divorce may not be maintained in behalf of the incompetent. In this conclusion I cannot concur. The opinion of the court correctly points out that nothing in the statutes covering divorce expressly or by reasonable inference authorizes the committee of an incompetent person to institute such an action, and the rule which has been generally accepted in other jurisdictions is that without express statutory language authorizing such action by committees for incompetents, such *Page 192 authority will not be implied. But here nothing is left to implication. The statutory language is specific, and expressly includes "any action or special proceeding" which the incompetent "might have maintained if the appointment" of the committee "had not been made." Surely it may not be inferred that this specifically all-inclusive language does not in terms include an action for divorce, or any other matrimonial action such as an action for separation. (See Kaplan v. Kaplan, 256 N.Y. 366.) Nor may we impute to the Legislature ignorance of the plain meaning of simple words.
The authorities in other states, cited in the opinion of the court, some holding that the committee or next friend may not bring such an action in behalf of an incompetent and some holding the other way, have arisen under statutes differing in terms, none of which, so far as the opinions disclose, expressly granted authority to bring any action or proceeding which the incompetent himself might have brought if he had not been declared incompetent.
None of these decisions goes further than Dillion v.Dillion (274 S.W. 217, Tex. Civ. App. 1925). In that case the statute employed general terms broad enough to include an action for divorce but did not add words indicating that every action which the incompetent could bring might be brought by his committee. Many of the cases predicate decision upon inferences of legislative intent drawn from the nature of an action for divorce. Such inferences fail if the statutory language clearly expresses a deliberate intent to include every action or proceeding which the incompetent could have brought if competent. Such intent, clearly expressed in our statute, is made clear in some statutes by naming the committee in connection with the procedure for obtaining a divorce. This is the case in Rhode Island and Massachusetts. (Thayer v. Thayer, 9 R.I. 377;Cowan v. Cowan, 139 Mass. 377.) But when the Legislature of this State authorized the committee of an incompetent to bring any action which the incompetent himself might have brought if he had not been adjudged incompetent, it was not necessary to mention the rule again in outlining the procedure in an action for divorce.
The language of the Civil Practice Act, section 1377, was under consideration by this court in Walter v. Walter (217 N.Y. 439 *Page 193 ), where it was contended that a committee of an incompetent was entitled to maintain an action to annul the marriage of the incompetent on the ground of lunacy. It was, however, concluded that the express provision with relation to an action to annul a voidable marriage authorizing relatives, a next friend, and the incompetent after restoration to sanity, to maintain the action, had the effect of excluding the committee, and that the general words of section 2340 of the Code (now the second paragraph of Civ. Prac. Act, § 1377) did not enlarge the specific provisions of sections 1747 and 1748 of the Code (now Civ. Prac. Act, §§ 1137, 1138) which named the persons authorized to maintain the action to annul a voidable marriage. The authority to sue granted in the Civil Practice Act, section 1377, is not so limited in this case. Unless the committee may sue, no one may sue in representation of the incompetent.
The question was expressly reserved in Kaplan v. Kaplan (supra, p. 367) where it was held that an action for a separation might be maintained by an insane wife through her guardian ad litem. This language is used in the opinion: "Ordinarily, in the absence of some express limitation, a cause of action in favor of an infant or incompetent, arising either under the common law or conferred by statute, may be prosecuted by a guardian ad litem or special guardian. Neither infancy nor insanity deprives a person of the right to appeal to the courts for redress of wrongs or for vindication of asserted rights. It cannot be questioned that an infant may bring an action for a separation through a guardian ad litem. Unless from the nature of the cause of action or from other sections of the statute we can find an implication of a contrary legislative intent, then an incompetent spouse may also prosecute such an action through an appropriate officer appointed by the court. Without some basis for such an implication, we may not assume that the Legislature, though providing a remedy by action for the failure of a party to carry out matrimonial obligations, impliedly limited these remedies to a sane spouse."
In his opinion Judge LEHMAN pointed out that the High Court of Justice in England in Mordaunt v. Mordaunt (L.R. 2 Prob. Div. 103) had held that because of its nature and results an action for divorce could not be maintained against an insane wife, but that that decision was reversed on appeal. (Mordaunt *Page 194 v. Moncrieffe, L.R. 2 Scotch Divorce Appeals [House of Lords] 374.) There it was held that since Parliament by statute provided an action for absolute divorce without any limitation that it might not be maintained against a lunatic, the courts may not impose such a limitation by implication. Referring to this decision, Judge LEHMAN added: "There, as we have said, the action was brought against an insane spouse. The same rule is applied where the action is brought in behalf of an insane spouse. (Baker v. Baker, L.R. 5 Prob. Div. 142, affd. 6 Prob. Div. 12.) The same question has never been decided by this Court. We are not called upon to decide it now."
Here we not only have no limitation expressed by the Legislature but we have express and emphatic language to the effect that there shall be no such limitation.
In the Baker case cited by Judge LEHMAN, the court answered the argument that the wronged spouse had an inherent right to condone the offense, and that therefore a divorce suit could not be commenced without his active volition, by saying (p. 151): "On the other hand it cannot be denied that, if reasons of expediency are to be regarded, great wrong might arise from holding that no proceedings for divorce can be maintained against the adulterous wife of a lunatic. She might be left in possession of property settled on her by her husband, which she and her paramour might enjoy to the exclusion of the lunatic. She might exercise powers of appointment in favour of the paramour or the children of her and his adultery, a spurious offspring might be foisted upon her husband and his family, by which the devolution of estates or titles might be diverted in favour of illegitimate objects. These evils would only be avoided by a dissolution of the marriage."
The worst of these consequences is admittedly present in this case. But in addition it should be said that this court is now asked to permit the plaintiff and her paramour to enforce the obligations of the separation agreement to pay her a monthly allowance until death shall dissolve the marriage relationship and she shall have received her statutory share of his estate, unless her husband recovers his sanity and puts an end to such dirty business by an action for divorce.
Such consequences of a limitation upon the expressed intent of the Legislature preclude the application of the rule most *Page 195 often applied to criminal statutes, that general terms should be limited where the literal application of the statute would lead to extreme or absurd results, and where the legislative purpose gathered from the whole act would be satisfied by a more limited interpretation. (Sorrells v. United States, 287 U.S. 435,447, 448.) Here the limitation imposed by the court produces absurd consequences and flagrant injustice, and contradicts the specific language of the statute.
The court having concluded that there can be no suit for divorce, the resulting situation should constrain decision sustaining the sufficiency of the defense because the husband's insanity has deprived him of the right to maintain an action for divorce. I have no doubt as to the sufficiency of the allegations to constitute a partial defense upon the ground that his obligation, defined and limited by the terms of the agreement, was conditioned upon his right to procure a divorce upon proof of the adultery which is admitted by the plaintiff. He made no promise to pay the plaintiff money which could not be terminated by procuring a divorce. His promise was conditioned upon the right to bring such a suit and terminate the obligation. If that right has been destroyed by his incompetency, then his promise to pay conditioned upon the right to terminate payments upon procuring a divorce becomes unenforcible insofar as all payments are concerned which would otherwise have been payable after his incompetency was adjudged and during its continuance.
The applicable principle is well stated in the Restatement of the Law of Contracts, volume 1, section 288: "Where the assumed possibility of a desired object or effect to be attained by either party to a contract forms the basis on which both parties enter into it, and this object or effect is or surely will be frustrated, a promisor who is without fault in causing the frustration, and who is harmed thereby, is discharged from the duty of performing his promise unless a contrary intention appears."
In this case the desired effect, clearly expressed in the agreement, was that the husband should pay a monthly allowance to the wife, but should be relieved of any obligation to make such payments if the wife committed acts of adultery and if he, in the exercise of his free will, chose to sue her for divorce and *Page 196 obtained a decree. This is the exact measure of the obligation as defined by the parties. But if it be true that through no fault of his own the husband has been deprived of his free choice to obtain a divorce and end the obligation, then the desired objective of the parties, as they defined it, is impossible of accomplishment. It was certainly contemplated by the agreement that the opportunity to obtain a divorce upon valid grounds should continue to exist. Its continued existence was the very foundation and condition upon which the promise was made to depend. Under these circumstances I have no doubt that the facts alleged, and admitted, constitute a defense under the authorities.
The rule in the well-known Coronation case, (Krell v.Henry, L.R. [1903] 2 K.B. 740), went far beyond the necessities of this case, for there, quoting Taylor v. Caldwell (3 B. S. 826), Vaughan Williams, L.J., said (p. 748): "That case at least makes it clear that `where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless, when the time for the fulfillment of the contract arrived, some particular specified thing continued to exist, so that when entering into the contract they must have contemplated such continued existence as the foundation of what was to be done; there, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be considered a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing without default of the contractor.'" The court then holds "that the English law applies the principle not only to cases where the performance of the contract becomes impossible by the cessation of existence of the thing which is the subject-matter of the contract, but also to cases where the event which renders the contract incapable of performance is the cessation or non-existence of an express condition or state of things, going to the root of the contract, and essential to its performance."
It was argued there that the rule was limited to conditions expressly mentioned in the contract. The court held that it was not so limited. But in the case under consideration the condition was expressly stated in the contract, and the defendants' obligation was predicated upon the condition. *Page 197
The principle which should control decision in the case at bar is illustrated most strikingly in cases arising upon bonds and recognizances, where the promise to pay is absolute in terms but is conditioned upon the happening of some event. This court long ago held that in such cases the impossibility of performance of the condition discharged the obligation to perform the promise of payment. (People v. Tubbs, 37 N.Y. 586. See, also, People v. Cook, 30 How. Pr. 110; People v. Cushney, 44 Barb. 118;People v. Bartlett, 3 Hill 570; People v. Manning, 8 Cow. 297; Carpenter v. Stevens, 12 Wend. 589.)
Accordingly, the court having held that the counterclaim is not maintainable, although upon the facts alleged and admitted the husband, if competent, could successfully maintain such an action, it follows that the husband's promise to pay a monthly allowance cannot be enforced during his incompetency, which was adjudged on July 16, 1923. The facts alleged do not constitute a complete defense, since there would be a right to recover payments prior to that date unless barred by the Statute of Limitations, a question with which we are not concerned on this appeal. Under the Civil Practice Act, section 262, the defense was improperly pleaded as a complete defense, but neither court below relied upon this defect in pleading.
For the reasons stated, the order of the Appellate Division should be affirmed, and both questions certified answered in the affirmative without prejudice to defendant to move at Special Term to plead over and allege the matter set up in the "Fourth Defense" as a partial defense.
LEHMAN, Ch. J., LOUGHRAN, CONWAY and DESMOND, JJ., concur with LEWIS, J.; THACHER, J., dissents, in opinion in which RIPPEY, J., concurs.
Ordered accordingly. *Page 198